The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com

Tuesday, April 21, 2015

What should the courts do about confusing statutes?

That was the question yesterday before the Supreme Court, which was looking at the Armed Career Criminal Statute. From the Washington Post:

Johnson was subject to an enhanced sentence because he had previous convictions. But he said that one of them — mere possession of a sawed-off shotgun — should not qualify as violent.

The Supreme Court originally took the case to decide that question. But months after the first argument, apparently unable to agree about the proper disposition of the case, the justices scheduled a new hearing on whether the clause was unconstitutionally vague.

As might be expected, Scalia led the questioning of whether the law could be saved. “Can we just patch up this statute in ways that have nothing to do with its text?” he asked Deputy Solicitor General Michael R. Dreeben, representing the government. He suggested that was a job for Congress.

Scalia said he did not believe it was enough that everyone agreed that some convictions would qualify.

“I suppose you could have a statute that criminalized annoying conduct, right?” Scalia asked. “And according to the government, that would not be unconstitutional, because there’s some stuff that is clearly annoying, right?”

Dreeben said the concern should be less because the burden is on the government.

If a court is not satisfied that a crime fits within the category, “the government loses,” Dreeben said. “The tie goes to the defendant.”

So my question to our district and circuit judges is why aren't more statutes found unconstitutionally vague? It is almost unheard of for the lower courts to do so, leaving it to the Supreme Court to step in. But so few cases get to the Supreme Court that the law is rarely tested. If more district and circuit judges were willing to say what we all know -- that many of these statutes make no sense and criminalize all sorts of benign conduct, the Supreme Court would examine more cases and the law would progress.

The Southern District of Florida blog was started by David Oscar Markus, who is a criminal trial and appellate lawyer in Miami, Florida. He frequently practices in federal courts around the country, including his hometown, the Southern District of Florida and the 11th Circuit Court of Appeals. He is a former law clerk to then-Chief Judge of the District, Edward B. Davis.